LOS ANGELES—In response to a demand by the Los Angeles City Council back in February, the L.A. City Attorney has delivered his report on whether the Council can force FilmLA, Inc., the quasi-governmental body that issues filming permits in the city, to deny such permits to adult companies that don't use condoms for sex scenes—and as AVN reported in December, the answer is "yes ... but they probably won't."
A recent memo from the City Attorney states, "The language on the permit requires the permittee to adhere to all federal, state and local laws, which would include Title 8 of the California Code of Regulations Section 5193 requiring employees exposed to blood borne pathogens to wear protective gear. In the event any terms of the permit are violated during the permitted activity, LAPD has the discretion to revoke the permit." It later adds, "The language [on the permit] also currently states that '[i]n the event that an authorized representative of the Permit Authority determines that the activities being or to be conducted under this permit unnecessarily endanger the health or safety of any person, that said activities are likely to or will cause immediate damage to real or personal property, or that such activities are not being conducted in accordance with the terms and conditions of this permit, said representative, at his or her sole discretion, may suspend, revoke, cancel or amend this permit'."
Even more interesting, however, is that, contained within the City Attorney's report is mention of City Council Resolution 04-0002-S97, introduced in March, 2005, where "the Los Angeles County Supervisors ha[d] voted to seek the authority to require the use of condoms by adult-film performers in the wake of the  HIV outbreak in the multibillion-dollar industry; and WHEREAS the county's public health officer has indicated that local officials do not currently have the power to require the use of condoms on adult-movie sets." That bill, the attorney notes, "ultimately died in committee," and no similar bill has been proposed since.
The City Attorney's report also notes that the issue was taken up by the state assembly in 2004. AB 2798, introduced by then-Assemblymember Tim Leslie, a conservative, would have required all performers, prior to engaging in filming a sex scene, to have been tested for STDs at the company's expense, and if found to be positive for STD infection, to be barred from filming until receiving certification from a doctor that the infection has passed. It also would have created civil liability for any company or performer who violated the testing protocol and caused damage to another person because of such violation. The bill died in the assembly's health and safety committee in November, 2004.
The bulk of the City Attorney's report, however, is taken up with a discussion of the founding and duties of the California Division of Occupational Safety and Health, better known as Cal/OSHA. It notes, "Even the County of Los Angeles Department of Public Health, however, indicates that it is Cal-OSHA, and not the County, that 'sets forth and enforces standards for workplace health and safety' in reference to acute communicable disease control... Since the area is already regulated by the State through Labor Code Sections 140 et seq, 6300 et seq, and Title 8 of the California Code of Regulations, any legislation the City may entertain would be preempted, and void."
What that means is, under the law, enforcement of the state health code is entirely in the hands of Cal/OSHA and the Occupational Safety and Health Standards Board (which most recently met on March 17), and that any attempt by the city or county to assert authority over health-related issues would be ruled unenforceable.
"Although many adult films shoot within the City of Los Angeles, adult movie filming is by no means limited to our City," the report notes. "The matter of protecting employees exposed to blood borne pathogens is a matter of statewide concern, as it reaches far beyond 'municipal concerns.' In fact, the state workplace safety regulations are a 'matter of statewide interest and concern' necessitating uniform regulation." Therefore, "regarding workplace safety, California clearly and expressly occupies the field. 'California has actively asserted jurisdiction over all places of employment with California since 1917.'"
Finally, after noting that Cal/OSHA hearings on the use of "barrier protection" in adult filming have been ongoing, the City Attorney concludes, "It is the opinion of this Office that the current permit language covers the use of condoms on all permitted adult film sets to the extent that the City may legally do so. Based on the current permit language, along with the jurisdictional concerns in regulating workplace safety issues, our Office recommends the permit language remain unchanged and this report be noted and filed."
Bottom line: It's up to Cal/OSHA to enforce its ideas of occupational health and safety on adult movie sets, and any attempt that the City of Los Angeles might make to assume that authority, even to the extent of attempting to rewrite the requirements for the issuance of filming permits, would be overstepping its legal authority.
The City Attorney's report can be accessed here.